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Lessons from India on Sex-Selective Abortions?

Thursday, May 19, 2016

Sex-selective abortion has received some media attention recently
because of a study that found some couples in Canada are practicing prenatal
sex selection, that is, aborting female fetuses because of a preference for male
children.[1]
Related studies, published in the Canadian Medical Association Journal found a
higher-than-expected ratio of boys to girls born to immigrants from India over
the past two decades. Researchers linked this phenomenon to preceding
abortions.[2]
This gender imbalance was particularly striking among families that already had
two daughters.[3]

This observation has prompted some to call for legislation banning
sex-selective abortions.[4]
While I lament the idea of a female fetus being aborted simply because of a
desire to have a male child, I find it hard to restrict abortion for whatever
reason in a country where feminists have fought hard for a woman’s right to
control her body. There may be lessons that Canada can learn from India where
sex-selective abortions have been legally prohibited since 1994.[5]

In India, the fight for a woman’s right to abortion has never
existed because abortion has been available since 1971 as a desired method of
population control imposed by the Indian government. Indeed the Indian women’s
movement has fought vigorously for a woman’s right to control her body, which
has manifested itself in the right to be free from untested and dangerous
contraceptive measures and unwanted sterilization. In spite of its notable
achievements, the Indian women’s movement remains predominantly urban and middle
class. Despite a certain degree of awareness of women’s internal differences as
a group, the Indian feminist movement has assumed that the occurrence of patriarchy
in all women’s lives has been experienced similarly. This resulted in a
feminist campaign to legally prohibit sex-selective abortion that, in my view,
seriously undermines the position of poor Indian women by insisting upon a
broader project of feminine emancipation that has consistently obstructed and
repressed their choices.[6]

Poor Indian women and Indian feminists are not necessarily in
agreement on all issues of empowerment. The distinction between caste and class
privilege among women is a significant variance that obscures any single and
clear route to a politics that is both liberatory and anti-patriarchal. In
1996, the government of India outlawed pre-natal sex determination tests making
it illegal to advertise or perform these tests (with a few exceptions), and
punishing doctors, relatives who encourage the tests and the woman herself with
fines from ten to fifty thousand rupees (nearly two hundred to one thousand
Canadian dollars) and jail terms from three to five years.[7]

Such legal measures have been shown to be mostly ineffective as the
offence cannot be easily proven because the woman, her husband and other family
members would not disclose the facts easily. The medical practitioner would
similarly not co-operate in an investigation where s/he would also be
prosecuted. The impact of such legislation has been the greatest on the poor.
The rich can pay for discreet clinics and abortions, while poor women will
either be forced to bear unwanted children or prenatal sex determination will
be pushed underground. Indeed clinics have sprung up in working class areas and
slums offering prenatal sex determination at “cut-rate prices” and playing on
the fear of dowry with such slogans as “Better 500 rupees now than 500,000
later”.[8]
Legal prohibition has had the negative effect of promoting prenatal sex testing
as a justifiable form of profit making.

Many Indian feminists view this restrictive legislation as an
important and progressive strategy toward social change. A political
implication that remains however, is that the law necessarily entails limiting
a woman’s right to abortion, hence her ability to have control of her body.

Because Indian women are hailed and appreciated upon bearing male
offspring, in choosing to abort female fetuses they are in fact, making the
rational choice to protect their dignity and bodily integrity. Indian women are
faced not only with intense emotional pressure and hostility from their in-laws
to produce male offspring, but they are additionally threatened by the prospect
of divorce, being thrown out of their homes or being beaten by their husbands
if they produce yet another daughter or fail to conceive a son. Prenatal sex
determination may for these women be the lesser of two evils. If Indian women
have a found a solution, albeit temporary, to avoiding the immediate threat of
physical harm, social disapproval and alienation, and they cannot be offered a
safer and more fruitful alternative, why should they willing give up their
right to imagine themselves as they see fit, with or without female
children?

The limited context of choice for poor Indian women, which leaves
them few options for subversive action, may well justify the sex-selective
abortion of female fetuses. This is not to suggest that the feminist position
on the selective abortion of female fetuses is unjustifiable, but that the
women’s movement must fundamentally revisit the method of its campaign against
women’s oppression on this issue.

The key to preventing sex-selective abortion lies not in banning
prenatal sex determination tests but in improving the status of women
generally. What is critical is changing attitudes and the value of women in
society. This is not a “law and order” problem, but a larger more difficult
emancipatory project. We must utilize non-legislative methods of combating female feticide and improving women’s actual lived conditions, a strategy
that entails empowering women through accessible health care and education,
employment opportunities and social security. This would be more effective in
battling age-old prejudices against young girls but would also not infringe
upon women’s right to control their own bodies.

The kind of transformation that Indian feminists have sought, namely
the revaluation of the feminine cannot be found merely in the law.[9]
That kind of fundamental change must simultaneously be sought in alternatives
to the legal discourse. Feminists must engage in a dialogue with their poorer
sisters. To impose a legal ban that prohibits and punishes their actions is to
ignore the nuances of class and to disregard the real life circumstances under
which these women struggle.

Canadians may wish to consider the Indian experience before imposing
heavy-handed restrictions that curtail a woman’s physical and mental security
and do little to change deep-rooted beliefs. It is possible to be against the
practice of female feticide because it preserves the devaluation of the
feminine and not agree that women’s control over their bodies should be restricted.
My proposal is not one of relativistic resignation; instead it proposes a
challenge of politically convincing women not to abort their female fetuses
while simultaneously accepting the decisions and rights of all women to control
their own bodies.

Front line workers in Canada have already seen signs of shifting
attitudes and behaviours. Ninu Kange of Mosaic, an immigrant and refugee
settlement organization in Vancouver has found that the preference for male
children decreases as families recognize that females have greater
opportunities and are more empowered in Canadian society.[10]
Other communities are proactively challenging male preference by for example, celebrating
the Punjabi festival of Lohri, which is traditionally held by some in honour of
the birth of a boy, for their daughters as well.[11]

A narrow eye toward a broader vision of greater good may in fact
unconsciously duplicate oppression. We must vigorously oppose the oppression
and devaluation of women, but not in a way that thwarts women’s control of
their own bodies.

[3] Among Indian-born mothers, the proportion
of males increased with the number of children born. By the third birth, 138
boys were born to Indian-born mothers for every 100 girls, and by the fourth
birth, 166 boys were born to every 100 girls. Supra note 1.

[4] In-vitro sex selection is banned in Canada,
but in utero or sex selective abortion is not.Dr. Rajendra Kale has stated that Canada
should ban fetal sex disclosure to all pregnant women before seven months, when
it is too late for an abortion. Michel Viatteau, “Keep sex of fetuses a secret
to prevent selective abortion of girls: Canadian Medical Association Journal”
National Post (16 Jan 2012), online: National Post <http://news.nationalpost.com/news/canada/canada-is-haven-for-parents-seeking-sex-selective-abortions-medical-journal>.

[5] Pre-Conception and Pre-Natal Diagnostic TechniquesAct, 1994, Parliament of India, Act No.
57 of 1994, 20 September 1994. The act was amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition Of Sex Selection) Act to improve the regulation of
the technology used in sex selection. It brought ultrasound and the technique
of preconception sex selection within its ambit.

[7] The criminalization of women in this
context is particularly problematic as much of the evidence suggests that women
are not necessarily the ones seeking sex-selective abortion, but may feel
pressured to do so by their families. In India see for example: Odessa Gorman
Stapleton, “Prohibiting Amniocentesis in India: A Solution to the Problem of
Female Infanticide or a Problem to the Solution of Prenatal Diagnosis” (1990)
14 ILSA Journal of International Law 23. In Canada see, Shree Mulay supra note 1 and Interview of Kripa
Sekhar, executive director of the South Asian Women’s Centre by Anna-Maria
Tremonti (13 April 2016) on The Current,
CBC Radio, Toronto, CBC Radio Archives, online: <http://www.cbc.ca/radio/thecurrent/the-current-for-april-13-2016-1.3533281/indo-canadian-couples-choosing-sons-over-daughters-study-1.3533292>.

[8] The preference for sons in India is
strongly linked to the practice of dowry, which enforces that daughters be seen
as liabilities and sons viewed as assets. Though the giving of dowry has been
legally forbidden since 1961, it is common knowledge that an economically
crippling price is expected, frequently named and ruthlessly exacted from the
parents of the bride with threats of violence to their daughter if it is not.

[9] The feminist movement in India has
appreciated the potential role of the law in seeking a broad strategy for
challenging the inferior position of women. Indeed the symbolic potential of
the law in people’s lives has ensured that the issues of rape and dowry have
become matters of public and political interest. However, this same approach
when applied to the situation of sex-selective abortion results in a
politically contradictory, philosophically incoherent and legally dangerous
strategy.